'Don't Ask, Don't Tell' on the Way Out

Fair enough, but there are practical reasons why McCain, the VFW
and others who question the wisdom of repeal might want to get behind
this document. Two words: "judicial fiat." As Gates warned, either
Washington can repeal "don't ask, don't tell" or the courts can do it
for Washington.

If the Ninth Circuit Court of Appeals in San Francisco decides
the matter -- in the wake of a federal judge's ruling suspending the
policy -- you probably can kiss goodbye recommendations designed to
protect troops who have religious or moral objections to ending "don't
ask, don't tell."

The panel, for example, understood that troops might oppose
repealing "don't ask, don't tell" out of the fear that it will be "only
a matter of time before the military censors the religious expression of
chaplains and marginalizes denominations that teach what the Bible says
about homosexual behavior." Having seen San Francisco pols go after
religious groups, I understand that fear.

The report made clear that a repeal should not try to control
how military personnel think: "In the event of repeal, we cannot and
should not expect individual Service members to change their personal
religious or moral beliefs about homosexuality, but we do expect every
Service member to treat all others with dignity and respect, consistent
with core values that already exist in each Service." Treat everyone
with respect. It's common sense.

The working group also recommended against creating a "protected
class" for gays and lesbians. Aubrey Sarvis of the pro-repeal group,
Servicemembers Legal Defense Network, told me he is on board with that
language. We're "not seeking any special privileges," he said. "All
they're asking is to be who they are without losing their jobs."

Republicans have resisted allowing a vote in the lame-duck
Congress. As Sarvis admitted, "It's no secret, one of the reasons we're
pushing for the lame-duck, it's only going to get tougher in the new
Congress."

But if repeal fails, Sarvis promised, "We will continue with our
allies." And then he mentioned the Ninth U.S. Circuit Court of Appeals,
which will rule on a September decision by U.S. District Judge Virginia
Phillips of Riverside, Calif., that found the policy to be
unconstitutional.

Everyone knows that "don't ask, don't tell" eventually will be
repealed. It's only a matter of time. So the question is: Will it be
repealed by people who care about the military and the rights of
dissenters, or will it be repealed by an arrogant judge with a political
agenda? That is the choice before the Senate.